Conclusion to Dishonest Acquisition

From Uni Study Guides
Jump to: navigation, search

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 962 - 984.

Introduction

[1] There is a recurring theme in property offences: what is the precise role of criminal law in regulating the way people acquire things?

  • Changing social, political and economic conditions have prompted gradual expansion of the criminal law in this area.
  • “But we should be extremely wary about assuming that the criminal law should inevitably seek to keep pace with economic and technological change, constantly being adapted to protect new types of valuable entity against new forms of dishonest ingenuity.”[2]
  • To what extent is it appropriate to call upon the criminal law as opposed to civil law remedies or consumer law?
  • Should industries which rely on machines be expected to develop mechanical safeguards rather than rely on the criminal law when mechanical failures have created opportunities for dishonest behaviour? (Consider banking and ATMs for example).
  • Levi suggests that this area of law should actually be left to the civil arena and self-regulatory bodies.[3]

White collar crime

[4] According to R Hogg and D Brown:[5]

  • “Most commonsense views of crime – and many academic studies – still tend to ignore or marginalise the size, significance and impact of ‘crimes of the powerful’. Published crime statistics rarely cover white collar crimes.”
  • “Alan Bond’s ‘siphoning off’ of $1 billion from Bell Resources, for which he was jailed in 1996, ‘exceeds the cost of all [Australian] household burglaries committed over an 18-month period.”

The snapshot approach to criminality

[6] The way we frame property offences focuses on the moment of taking and not on the surrounding circumstances, to the detriment of blue collar criminals and the benefit and white collar ones. According to Mark Kelman:[7]

  • It “normalises, sanitises and decriminalises the property holdings of dominating groups, which are unlikely to be traceable to single, easily identified disruptive events.”
  • “...the incidental focus decontextualises, delegitimizes and thereby criminalises the activities of the dispossessed.”
  • “Rather than viewing the introduction of an unsafe product onto the market as a reckless act which later causes harm, exculpating interpretations focus on the act as part of a longer-term process of market interaction.” The victim’s participation is foregrounded unlike any other area of the criminal law.

The significance of organisational structures

[8]In their Dynamic Cultural Theory, anthropologists Mary Douglas and Gerard Mars argue that there is a close relationship between the way that certain occupations are organised and the type and degree of crime or “fiddling.”[9]

  • The most significant factors are constraints on autonomy and working as part of a face to face group, combinations of which cause different levels and types of crime.
  • In some occupations there is “a blurred line between entrepreneuriality and flair on the one hand and sharp practice and fraud on the other.”
  • In situations where employers collude with employees “...controlled fiddling, far from being anarchic, is one of the factors that contribute to equilibrium in normal economic activity.”

This strongly suggests that a response through criminal law will be inadequate in causing behavioural change and a better response may be to change the way that particular jobs are organised to minimise crime.

Private justice

[10]Companies and other organisations usually have their own internal disciplinary procedures which deal with dishonesty. They enhance industrial relations, avoid publicity and may provide a better context for understanding why an offence is committed. Stuart Henry includes “temptation” as a motivation that may be empathised with by disciplinarians.[11]

The role of the accounting profession in business crime

[12]It is increasingly the norm to ask private forensic accountants to investigate rather than referring the matter to police. James Williams discusses this ‘privatisation’:[13]

  • Police investigation may be too narrow in the sense that it does not focus on issues of conflicts of interest, ethical violations and contractual disputes but also too broad in that it may expose other activities and involvement of management such as tax evasion, manipulation of records, and accounting fraud.
  • Privatisation has the advantage for companies that they retain secrecy. Discretion and control and minimise impact on reputation and share value.
  • Other issues are priorities for business before criminal prosecution (which may not be recognised by police) these include stopping the ‘bleeding’, recovering lost assets and establishing programs to minimise future losses.
  • Private investigation focuses on employees as the primary perpetrators, affirming the internal hierarchy of a business which may be disturbed by police.


Prevention or Prosecution

[14]There is a growing emphasis on prevention of property crime.

  • Situational and technological prevention methods include special lighting in hot spot areas, electronic surveillance, closed circuit television, access control barriers, identification of often stolen items with special tags in shops and the removal of seating in malls where young people may congregate.
    • Some of these measures clearly raise issues in relation to the use of public space.
  • Commonwealth agencies are required to conduct a fraud risk assessment, followed by the preparation of bi-annual fraud control plans.
  • Strategies to prevent fraud include promoting awareness and ethical behaviour through staff training programs, the establishment of national fraud prevention training competency standards, separating payment and procurement functions, perimeter security and computer security.

Vehicle theft

Technology is often seen as the key method for preventing crime. The frequency of vehicle theft has decreased significantly since the mid-1980s as the result of a number of initiatives.

  • Increased penalties for car theft are not credited with the reduction, despite the readiness of politicians to resort to the criminal law as an apparently cheap and speedy method of solving social problems.
  • The NMVTRC advocates a number of strategies such as using an engine immobiliser, improving identification of motor vehicles and the parts to discourage “rebirthing”, education and diverting young recidivists.
  • The U-Turn program targets young recidivists and exploits their interest in cars and mechanics as a way of encouraging participation in the program. It provides links to employment, literacy and numeracy and mentoring.
  • See textbook pp 969-72 for more detailed information and statistics.

Aggravated Trespess Offences

[15] Unauthorised entry to houses and building is perceived as a far more serious offence than trespass to land. The Columbia Law Review attributes this to:[16]

  • Greater probability of emotional distress on the part of occupants.
  • The probability that the entry will be followed by the commission of another crime.
  • The chance of violence and resistance on the part of the occupants.

Breaking/entering

Breaking and entering offences are aimed at those whose objective is to commit other offences such as violence or sexual offences as well as acquiring assets.

  • S 113 of the Crimes Act 1900, makes it an offence to break and enter with intent to commit a serious indictable offence, maximum penalty 10 years. The penalty increases to 14 years (s 112) if the offence is successfully committed.
  • S 114(1)(d) makes it an offence to enter or remain upon land/buildings with intent to commit an indictable offence, penalty 7 years. (Covers situation where there is no actual break in).
  • S 111 makes it an offence to enter a dwelling house with intent to commit a serious indictable offence, penalty 10 years.
  • Amendments created specifically aggravated versions of these offences, with increased maximum penalties. If the defendant wounds or inflicts GBH, or is armed with a dangerous weapon, a specially aggravated offence is committed (s 105A). Aggravating circumstances are:
    • Being armed.
    • Being in company.
    • Using corporal violence.
    • Inflicting actual bodily harm.
    • Depriving someone of their liberty.
    • Knowing that someone is in the building.
  • The burden of proof is reversed if there was someone in the building and the defendant is presumed to know this unless they can negate it.
  • “Breaking” includes opening a closed window or door and gaining entry by false pretences, however, further opening partly open window or door is not breaking.
  • The role of the criminal law in relation to housebreaking is becoming increasingly symbolic, with very low clear up rates. Insurance companies are placing pressure on policy holders to use mechanical security devices and police place greater emphasis on Neighbourhood Watches.
  • See textbook p 973 for statistics on burglary.

Police resources and repeat offenders

Don Weatherburn, Jiuzhao Hua and Steve Moffat argue that:[17]

  • Low clear-up rates mean that most offenders are never caught and therefore more resources should be devoted to removing iincentives and opportunities for crime.
  • There appear to be two groups of offenders: one which offends and is convicted at a high rate and one which offends and is convicted at a much lower rate.
  • The disproportionately large contribution of the first group to the crime rate means that reductions in re-offending can be expected to have a large impact on the crime rate, justifying policing.

Computer data access, modification and communication impairment offences

The phenomenon of computer hacking or gaining access to unauthorised data emerged in the 1980s.

  • Laws prohibiting hacking were first introduced in NSW in 1989 and replaced in 2001 by a new suite of offences which create more serious offences focussed on a criminal damage paradigm.
  • S 308H enacts a summary offence of gaining access to restricted data, with a maximum penalty of two years’ imprisonment.
  • Other offences include preparatory offences and modifying data.
  • Rather than using the morally-based element of dishonesty, the offences rely on the defendant knowingly accessing unauthorised data.
  • If a person is given access to data only for specified purposes, any access for any other purpose would be unauthorised (DDP v Gilmour [18])

Receiving and Goods in Custody[19]

Receiving stolen property

Sections 188-189 of the Crimes Act 1900, create offences of receiving, disposing of or attempting to dispose of stolen goods, knowing them to be stolen.

  • If the property is a motor vehicle, vessel or part of either, the maximum penalty is 12 years’ imprisonment.
  • If the property is anything else, the maximum penalty is 10 years’ imprisonment.
  • The maximum penalty is double that of larceny as receivers encourage stealing by providing means of disposing of stolen goods.
  • Alternate charges are available where the jury cannot decide whether the defendant stole or received the goods.

Receiving at common law is comprised of three elements:

  • Stolen property: the property has not returned to the possession of the person from whom it was stolen. (Police must be careful only to take custody of stolen goods).
  • Receiving that property: it must be proved in evidence that the defendant took possession not merely custody of the goods, it may be held jointly with the thief or constructively through an employee or accomplice. Ss 188-9 also include disposing of the goods.
  • With knowledge that the property is stolen: common law holds it sufficient that the defendant had the belief that the property was stolen, however, the word “knowledge” in ss 188-9 have led to uncertainty about the requisite mental state.
    • In Raad,[20] the court held that the prosecution had to prove that the defendant actually believed the property was stolen in the sense that they accepted the truth that it was stolen. Mere suspicion or deliberate closing of the eyes was not sufficient.
    • In Schipanski,[21] the court emphasised that references to wilful blindness could lead to confusion and error.
    • In Dykyi[22] and McConnell,[23] the court did not completely outlaw the use of this expression but emphasised that the ultimate issue was the actual state of mind.
    • In Hall,[24] the UK Court of Appeal said that belief arose when there was no other reasonable conclusion or the person had been told by someone with first hand knowledge.
  • The belief that the property is stolen must exist at the time of receipt. (Balough).[25]
  • In Matthews,[26] it was held that no receiving had occurred when the defendant admitted to knowing that property was stolen but at the time had intended to hand it over to police. A later decision to keep the goods was held not to turn the innocent receipt into a felonious one.

Procedural issues

Recent possession

The prosecution continues to be aided by the common law doctrine of “recent possession”.

  • The doctrine, as expressed in Bruce, is “where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused.”[27]
  • In Bellamy,[28] the limits of the doctrine were expressed as not operating if the accused does give an explanation of how the recently stolen property came into his possession, if the jury decides that the explanation is reasonably true. In the absence of any explanation the jury only entitled to convict, not obliged.
  • How long a period may be constituted by “recently” is an issue for the jury or magistrate to decide. (Bellamy.)
    • The decision will be influenced by the nature and value of the property and the circumstances in which it was obtained, for example, in Sinanovic,[29] a ring alleged by the defendant to be worth $1500 was considered to be “recently” possessed seven months after the date of acquisition.
  • In Bruce,[30] the court clarified that relationship between the doctrine and the defendant’s right to silence. The doctrine arises from the unexplained fact of possession, not from any admission of guilt arising from the failure to proffer an explanation.

Persons unknown

It is possible to charge someone with larceny or receiving stolen goods from persons unknown but there must be evidence that the goods did in fact belong to someone. In Isaacs,[31] the court noted that:

  • “It is an essential thing to show that [the goods] were either the property of a person unknown or of some person named.” If the identity of the owner is uncovered the amendment of information must be made.

Trainer[32] approved Isaacs and issued the caution:

  • “If it does not appear whether the property belongs to the [accused] or not, then you cannot draw any inference from his refusal to give an account of it.”

Goods in custody

If the prosecution is unable to prove the mens rea for receiving, s 527C of the Crimes Act 1900 creates an alternative which requires the defendant to prove that he or she was not negligent.

  • In Grant,,[33] the High Court commented that a strict construction should be given to the words of the legislation to recognise “the extraordinarily serious character of a law which authorises the arrest of a person on mere suspicion, to be followed by his conviction and possible imprisonment unless he satisfies the court that he had no reasonable for suspicion that the thing in his custody bore the taint of illegality.”
  • In Haken v Johnson,[34] the court noted that it is the “duty of the magistrate to decide whether he was satisfied, at the time of the decision rather than at the time of the arrest tor charging... whether it was proper to entertain a reasonable suspicion that the goods were stolen or unlawfully obtained.” Furthermore, “there is no necessity for the prosecution to point to the commission of a specific or general offence.”
  • In Grant,[35] the High Court rejected the argument that an offence was committed in relation to money drawn from a bank account even though there had previously been paid into the account money reasonably suspected of being the actual proceeds of the illegal sale of drugs.
    • Otherwise, the whole course of commercial dealings could be affected by the impracticality of such a decision.
    • However, where actual bank notes are found in the defendant’s possession which are reasonably suspected of being unlawfully obtained a conviction may arise.

In Anderson v Judges of District Court of NSW [36] the defendant was charged under this provision:

  • Facts: the defendant had hired cars on a number of occasions and aroused the suspicion of the police informant, when he was apprehended under the auspicious of drug charge on this occasion police searched his person and the vehicle and found a total of $13,900 in cash including money hidden in unusual places in goods in the car. The defendant gave conflicting responses and lied about the amount of cash in his possession.
  • Held: the prosecution must prove beyond reasonable doubt that the goods may be suspected of being illegally obtained.
  • The defendant argued that there was no evidence of guilt and that such evidence as existed was at least equally consistent with innocence.
    • He also argued that carrying the cash was unusual but not unlawful and that police should not be able to intrude into the lives of citizens and force them to account for money in their possession before they could recover it. The court sympathised but held that this was the purpose of the unusual law.
  • In order to negate the prosecution case, the defendant may show that the suspicion was not well grounded or that the goods were obtained lawfully. They may also rely on the prosecution not establishing a prima facie case or suspicion beyond reasonable doubt.
  • The idea of suspicion beyond reasonable doubt is highly contentious, however, to reject it would nullify the effect of the legislation.

Other cases:

  • In English,[37] the court held that except in limited circumstances it had to be proved that the defendant was in possession of the goods at the time of apprehension. However, in situations where goods have been lost before apprehension, there is a possible argument that the defendant remains in custody or where the goods have been recovered by the police they can simply be returned before apprehension.
  • Gilroy v Jebara[38] gave an expansive interpretation to s 527C(1)(d), holding that the defendant gave custody to a person not lawfully entitled to possession where he sold the article to somebody else.
  • Chan[39] held that the prosecution was not required to show that the goods were a product of theft as distinct to another unlawful enterprise.
  • In applying Chan in Madden,[40] the court held that the mere fact that there is more than one conclusion reasonably open on the facts does not mean that the prosecution has failed to prove its case.

End

This is the end of this topic. Click here to go back to the main subject page for Criminal Laws.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 962.
  2. Textbook, pp. 963.
  3. Regulating Fraud: White-Collar Crime and the Criminal Process (1987) at 15.
  4. Textbook, pp. 963.
  5. Rethinking Law and Order, (1998) 88-9.
  6. Textbook, pp. 963-4.
  7. “Interpretive Construction in the Substantive Criminal Law” (1981) 33 Stanford LR 591.
  8. Textbook, pp. 964-5.
  9. Cheats at Work: an Anthropology of Workplace Crime (1994).
  10. Textbook, pp. 965-6.
  11. Stuart Henry, Private Justice: Towards Integrated Theorising in the Sociology of Law (1983) 142-4.
  12. Textbook, pp. 966-8.
  13. James W Williams, "Reflections on the Private Versus Public Policing of Economic Crime" (2005) 43 Brit J Criminol" 316.
  14. Textbook, pp. 969-72.
  15. Textbook, pp. 972-76.
  16. "Note: A rationale of the law of burglary" (1951) 51 Columbia LR 1009.
  17. "Rates of Participation in burglary and motor vehicle theft - Estimates and implications for policy" Contemporary Issues in Crime and Justice No 130 (July 2009).
  18. (1995) 134 ALR 631.
  19. Textbook, pp. 976-84.
  20. {1983] 3 NSWLR 344.
  21. (1989) 17 NSWLR 618
  22. (1993) 29 NSWLR 672.
  23. (1993) 96 A Crim R 39.
  24. (1985) 81 Cr App R 260.
  25. (155) 72 WN 108.
  26. [1950] 1 All ER 137.
  27. (1987) 61 ALJR 603 at 603.
  28. [1981] 2 NSWLR 727.
  29. [2000] NSWCCA 395.
  30. (1987) 61 ALJR 603.
  31. (1884) 5 LR (NSW) 369.
  32. (1906) 4 CLR 126.
  33. (1981) 147 CLR 503.
  34. (unreported, NSWSC, 15 October 1993, BC9302396).
  35. (1981) 147 CLR 503.
  36. (1992) 27 NSWLR 701.
  37. (1989) 17 NSWLR 149.
  38. (1992) 29 NSWLR 20.
  39. (1992) 28 NSWLR 421.
  40. (1995) 85 A Crim R 367.
Personal tools
Namespaces

Variants
Actions
Navigation
Toolbox